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John C. Clifford, Iii v. Cropproductionservices

November 29, 2010


Appeal from the United States District Court for the Central District of Illinois. No. 08-C-02094-David G. Bernthal, Magistrate Judge. ARGUED OCTOBER 18, 2010

The opinion of the court was delivered by: Adelman, District Judge.


Before POSNER and WOOD, Circuit Judges, and ADELMAN, District Judge.*fn1

In this negligence case involving Illinois substantive law, the district court granted the defendant's motion for summary judgment after excluding the plaintiff's expert witness and concluding that, without expert testimony, the plaintiff's claim failed as a matter of law. The plaintiff appeals both the exclusion of his expert witness and the district court's grant of summary judgment. We affirm.


The plaintiff below and appellant here, John C. Clifford, III, farmed seed corn under a contract with Monsanto. In 2007, at Monsanto's direction, Clifford planted male and female strains of seed corn on three different fields. The male strains were labeled as being sensitive to two types of herbicides: sulfonylureas and pigment inhibitors. In early June, Clifford noticed weeds in the corn and asked Monsanto about potential herbicides he could use to control the weeds. Despite the corn's sensitivity to sulfonylureas and pigment inhibitors, a Monsanto representative told Clifford that there were no restrictions on the types of herbicides that could be applied to the corn. Clifford then contacted a supplier of herbicides, appellee Crop Productions Services, Inc. ("CPS"), and asked it to send a representative to his farm in order to view the weeds. A CPS representative viewed the weeds and recommended that Clifford use a custom blend of herbicides containing Steadfast, a brand-name sulfonylurea herbicide, and Callisto, a brand-name pigment-inhibitor herbicide.

Following CPS's recommendation, Clifford ordered four batches of the custom herbicide blend, which CPS mixed and dispensed to Clifford on three separate days. For each batch, CPS mixed the blend "on demand" and dispensed it to Clifford in a tank that CPS had loaned him for the season. To mix the blend, CPS used a system that consisted of a large mixing tank connected by hoses to bulk bins of various agricultural products, including herbicides. CPS employees used a computerized mechanism to measure products from the bulk bins and convey them to the mixing tank. Any products not stored in the bulk bins were added by hand. When mixing was complete, the blend was dispensed through a hose into Clifford's tank.

Clifford transported each batch to his fields and used his own spray equipment to spray the seed corn. Within a week of spraying, Clifford began to notice damage to the corn. At least some of the corn on all three of Clifford's fields eventually died. At Monsanto's direction, Clifford destroyed all of the corn on one of the fields and a portion of the corn on a second field.

Clifford contacted CPS to discuss the damage to his corn. CPS, in turn, contacted a representative of Steadfast, who visited Clifford's fields and concluded that Steadfast caused the damage. Shortly after the Steadfast representative's visit, however, Pat Geneser, a Monsanto employee, visited Clifford's fields. After viewing the corn, Geneser began to suspect that the damage was caused by glyphosate, the active ingredient in Monsanto's Roundup herbicide. Geneser sent samples of the damaged corn to a laboratory, and after analysis the laboratory determined that the samples contained trace amounts of glyphosate-specifically, 1/76,000 of a full dose of glyphosate. After receiving the laboratory's results, Geneser inferred that CPS might have accidentally mixed Roundup into Clifford's custom blend. Clifford then filed this suit against CPS, alleging negligence and breach of implied warranty. Clifford eventually dropped the implied warranty claim, leaving only the negligence claim.

CPS defended against the negligence claim on four grounds. First, it argued that it was the sulfonylurea and pigment-inhibitor herbicides in the custom blend that damaged Clifford's corn, not glyphosate. Second, it argued that even if Clifford could prove that glyphosate caused the damage, he could not prove that the custom blend was the source of the glyphosate. In this regard, CPS noted that Clifford's tank or spray equipment might have been contaminated with glyphosate. CPS also noted that someone near Clifford's fields may have used a glyphosate herbicide on his or her own crops, and that drift from the neighboring field may have been the source of the glyphosate detected in Clifford's corn. Third, CPS argued that even if the custom blend was the source of the glyphosate, Clifford could not prove that CPS had breached any duty of care when it prepared and dispensed the custom blend. Finally, CPS argued that even if Clifford could prove all the elements of his negligence claim, the claim would still fail as a matter of law because it was barred by the economic loss doctrine.

As discovery in the district court proceeded, the deadline for Clifford to disclose expert witnesses came and went without Clifford disclosing expert testimony in support of his claims. CPS thus moved for summary judgment, arguing that without an expert Clifford could not show either that his damages were caused by glyphosate, that CPS was the source of the glyphosate, or that CPS had breached any duty. CPS also moved for summary judgment based on the economic loss doctrine.

In opposing CPS's motion, Clifford did not dispute that he had not disclosed any expert testimony. However, he took the position that Geneser's testimony was lay rather than expert testimony and that such testimony was sufficient to establish that glyphosate had caused the damage to his corn.*fn2 He further argued that expert testimony was not required to show that CPS had breached a duty of care because a trier of fact could infer from the presence of glyphosate in his corn that CPS had breached a duty to supply him with glyphosate-free herbicide.

The district court determined that Geneser's testimony was expert testimony that was inadmissible due to Clifford's failure to disclose it in accordance with Federal Rule of Civil Procedure 26(a)(2)(A).*fn3 The court then granted CPS's motion for summary judgment, reasoning that, without such testimony, Clifford ...

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